01 July 2011

Late last week the New York state senate passed a bill allowing same-sex marriages in the state. A few years ago, I would have seen this as a great leap forward. When California had its big argument about Proposition 8 -- which sought to constitutionally declare that only a marriage between a man and a woman would be recognized by the state -- I argued with anyone and everyone that its passage was wrong because, at its core, it denied to one group of people rights that were granted to another group. I still believe that to be true, today, but what happened in New York last week caused me to see things a little bit differently.

Coincidentally, a blog post at mises.org, today, links to an article that argues that libertarians should support New York's action:

[W]hile agreeing that the long-term goal is separation of marriage and State [...] given the slim chance of separation happening any time soon, classical-liberal principles require the State to treat all citizens as equal before the law.

[O]ne needs to separate rights from privileges and [...] increasing the relative size of a privileged group does not constitute a step in any valuable direction (at least from a libertarian point of view). [...] Equality under the numerous government laws is not only impossible (since pretty much all of them constitute privilege), but may be directly counter-acting the cause of liberty.

There was a time when I subscribed to the former view. Somewhere along the line, I came to embrace the latter. Let me explain.

Rights vs. Privileges

Up until I embraced this latter view, the difference between a right and a privilege never entered my mind. In reality, my conception was that a right was something that one had or acquired under the law. My definition of "right" was closer to that of "privilege". Since the two are going to be treated as separate from here on, it is worth defining them:

right: a just claim or title, whether legal, prescriptive, or moralprivilege: a right, immunity, or benefit enjoyed only by a person beyond the advantages of most

A right exists independent of any governing body. One has a just claim, for example, to his/her own body. After all, it doesn't make sense for anyone else to own it. Therefore, as the owner, one has a right to do with his/her body as he/she wishes. A privilege, on the other hand is something that is granted to one person or group. Voting is an example of this. While women and non-whites got the privilege long ago, it is still denied to felons in a number of states. This brings up an important distinction between rights and privileges. Privileges are granted and, therefore, can be (legitimately) taken away; rights are preexisting and cannot be (again, legitimately) taken.

In addition, it is worth distinguishing between positive and negative rights. At its simplest, "a negative right forbids others from acting against the right holder, while a positive right obligates others to act with respect to the right holder." Libertarianism says that no person has the right to use or threaten another with force. This is, in fact, a negative right. Every person has the right to be free from the aggressive violence of another. In fact, civil rights such as freedom of speech and association and the right to bear arms all arise from this notion. None of these acts, in and of themselves, are aggressive in nature.

Under the idea of negative rights, two people have the "right" to voluntarily associate with each other in whatever manner they wish. Absent a government (and/or a church), a "marriage" is simply a compact or contract between two people and has no meaning beyond the participants in the contract. That is, I may welcome you into my house, but your marriage does not obligate me to also welcome your spouse. On the other hand, when someone says that he/she has a "right to marry" under the (government) law, he/she is asserting a "positive right". What that person is really saying is that he/she wishes -- is entitled by right -- to be afforded the privileges conferred upon other married people.

The problem with all of this, of course, is that these privileges eventually obligate others to act in a certain way, under penalty of government force, with respect to the marriage contract and its participants even though these "others" have nothing to do with the contract. The solution is equally obvious: leave government out of marriage completely.

But what of the first author's view that the goal should be equality under the law? Shouldn't gays who love each other and, if not for existing law, would marry be granted the privileges that accompany that marriage? Let's look quickly at the "spousal privilege" as it relates to testifying in court for an answer. The spousal privilege refers to the idea that a person cannot be compelled (via government force) to testify against his/her spouse at trial. But what of people who don't wish to marry? What of close friends? This "privilege" does not extend to them. Therefore, in this context, while gay marriage brings gays on equal footing with straights -- and doctors of various types, I might add -- it leaves a very sizable portion of the population out in the proverbial cold, still subject to being compelled to testify. Other benefits not granted to unmarried people include tax breaks, visitation rights, special immigration status, inheritance, etc. There is still no equality under the law, yet nobody that I am aware of is questioning this inequity.

Liberty as a privilege

Now that I've, I hope, made the right vs. privilege distinction clear, I think it is safe to say that, by and large, the rest of the population does not readily acknowledge this distinction. Instead, most of the population views the right to associate (via marriage, gay or otherwise) as indistinguishable from the privileges that come with the state recognition of that association. As such, arguably, this entire situation could be viewed as a group of people begging an even smaller group of people -- politicians -- to please, please, please grant them their liberty when it was the very institution for whom those politicians work that took it away in the first place.

Maybe marriage is a bad example, though. By that I mean, we can't rightly infer the intentions of all people who demand "marriage equality". Having muddied the waters by giving state sanction and privilege to marriage, the government has inextricably linked liberty/rights to privilege such that the population no longer recognizes the difference. And now, we arrive at the real reason I am not head over heels about the recent happenings in New York. The government has transformed liberty and natural rights into privileges.

Marriage, admittedly, is possibly not the best example. So, let's turn our attention to the right to keep and bear arms. In California, among other places, the right to carry a gun in public has been all but completely denied. Open carry of a loaded gun has long been illegal. Open carry of an unloaded gun has been legal by virtue of the legislature not realizing that it had not forbidden it, but it is quickly working to rectify that. Concealed carry is only an option if one lives in a rural area or is buddy, buddy with the sheriff of his/her county. Carrying a gun in an urban area of California is, no doubt, a privilege reserved to government officials and those that donate to them.

Let's go a step further. Earlier, I mentioned that each person is the proper owner of his/her own body (if for no other reason than because no other owner makes any sense) and can do whatever he or she wishes with it so long as the action does not violate another's ownership of his or her body. If this is true -- and it would be impossible in my mind to argue differently -- then one has the right to put whatever one wants into his or her own body. This includes not only so called illicit drugs but prescriptions as well. Why should one have to obtain permission from a doctor who has in turn been granted permission from the state to get a prescription?

Maybe drugs aren't your thing. Perhaps you like milk? I hope it's not raw milk. The FDA doesn't like raw milk and has even gone so far as to say that individuals do not have the right to eat what they wish. The FDA is quickly moving in the same direction against mothers who share breast milk.

All of these liberties have been transformed into government-granted privileges. As if that wasn't bad enough, the system is self perpetuating. As a monopoly provider of law and enforcement, the government has been put in the position of having the power to deny a right by law and enforce that denial through its police power, thus rendering it a privilege. Citizens are left with two options, neither of which is appealing: 1) ignore the law and risk ending up in jail, or 2) beg the government to recognize/grant their liberty.

The latter option seems to be the government's approved method of attempting to maintain/regain one's liberty, and there is a very simple reason for that. To utilize this method is to implicitly acknowledge that liberty is a government-granted privilege.